Lessons For The Young Attorney – From An Old Attorney: Lesson No. 4 (Practicing Family Law In “Never-Never Land”)

“Never-never land

Meaning:  A utopian dreamland.

Origin:   The term ‘never-never land’ is now usually applied with a sense of dismissiveness – used when someone is dreaming unrealistically about a utopian future.”  …

Welcome back, my young colleague … but it’s been a while since I visited with you, and that’s been entirely my fault.  You see, I’ve been spending a great deal of time recently in “never-never land”, and, if you don’t mind, I’d like to share with you what I learned during my time there (I’ve often traveled there over my professional career, and I’ve learned many of these lessons the hard way).

Let’s start:

  1. NEVER represent any family member or any friend in any family court matter that may become slightly – no, make that, even remotely – contested.
  2. NEVER become friends with your clients while in the course of your representation of them (it will forever cloud, in some way, the advice – and bad news – you will have to give them at some point during that representation).
  3. NEVER allow your clients to become your friend in the course of your representation of them (they will never tell you that they’re dissatisfied with your work or the results you may have achieved for them; but after your work for them has ended, and unless you achieved – but only in their minds – complete and total success for them, you will be the first one kicked to the proverbial curb by them).
  4. NEVER forget to share information with your clients, and as soon as possible (this can be in the form of copies of pleadings and related legal documents, emails, current client invoices, and/or any other information “in print” which directly relates to that client’s case … and this is important because, although you may have hundreds of client files (or dozens), every single one of your clients naturally wants to “feel” they are your only client).
  5. NEVER tell your clients that they should feel perfectly free to call you on your cellphone “24/7” (barring an obvious emergency), because in doing that you will ultimately limit (or “lower” or “reduce” or “cut short”) your professional “shelf-life” dramatically.
  6. NEVER send your clients a copy of any “proposed order” which your judge has requested that you prepare [also know that a judge can always change his/her mind before that order is signed and filed in the clerk’s office – “entered of record” – and you will then have an impossible time explaining to your client the “reasons” the judge “changed his/her mind”].
  7. NEVER send your clients a copy of any “instructions for the proposed order” which your judge has sent to both (or all the) attorneys of record in a case.
  8. NEVER send a letter – or any written transmission – to a family court judge where you are showing on the letter/transmittal that you have “cc’d” your client with a copy….and I can assure you that your judge will find that very “concerning”.
  9. NEVER transmit any written instrument – letter, email, or text – to another attorney which, in any manner, may be considered by the “receiving attorney” as an unprofessional communication from you (the attorneys’ civility oath is very much alive and well in South Carolina).
  10. NEVER, if you are the listed “attorney of record” in any current litigation, simply “return the file to the client” – for any  reason – without also immediately notifying any opposing counsel in writing and obtaining an order of the court relieving you as the client’s attorney of record [see:  Ex parte Strom, 343 S.C. 257, 539 S.E.2d 699 (S.C., 2000)].
  11. NEVER fail to read and study every memorandum opinion or unpublished opinion of our appellate courts (there is some mystical reason that appellate court opinions are “unpublished”, but that does not mean they don’t represent the “current thinking” of our appellate court judges … and so never be dismissive of these unpublished opinions).
  12. NEVER fail to take the opportunity to visit the South Carolina Judicial Department’s “video portal” and watch the archived arguments made before our South Carolina Supreme Court. It truly doesn’t matter what type of case is being argued, because you will be fascinated by the excellence of these legal arguments, not to mention the “give-and-take” between the Justices and the attorneys.  Great stuff.
  13. NEVER fail to outwork and out-prepare the opposing counsel in every single family court case you take – always remember that your client is paying you not only for the “best case outcome” achievable, but also most definitely for your tireless efforts on that client’s behalf.
  14. NEVER forget, as I’ve stated this repeatedly to young attorneys over the years, that your professional reputation among your peers is made within the first 10 years of your practice of law.  – Finally –
  15. NEVER forget to understand, appreciate, and embrace that, as an attorney at law, you are part of the legal fabric of this nation and this State and your community, and that you are forever bound and obligated to practice your craft with the excellence that it demands.

Good luck out there.

Lessons For The Young Attorney – From An Old Attorney: Lesson No. 3 (Learning The Craft Of Practicing Law – From The Sledgehammer To The Scalpel)

Welcome back, my young colleague, and first answer this: when you stood inside the South Carolina Supreme Court on the day you were sworn in as an attorney, and when you then signed the formal “enrollment of attorneys” and received your certificate formally admitting you into the profession, did you read the certificate while still inside the Supreme Court building?  Have you ever read it?

Here’s how mine begins: “IT APPEARING unto us, That Barry Wayne Knobel has complied with the requirements of the Law of this State in respect to the admission of persons to practice as Attorneys in the Courts of this State, and is duly qualified to act as such….”

That was on November 3, 1973.  My certificate of admission was signed by the Chief Justice and the associate justices (all of whom have long since passed away); and I vividly remember that on that day I was wearing a black, pin-striped suit, white shirt and black tie with white polka-dots…and spit-shined shoes.  On that auspicious (at least for me) day I absolutely looked the part….but on that same day, and for very, very many days which followed that day, I most certainly did NOT have a clue as to where my legal “roads not taken” would eventually take me; and I didn’t know then whether my choice to become an attorney would become my lifelong “profession”, or my “career”, or my “craft”….or simply the way in which to make enough money to pay my monthly bills, including repaying my law school loans.

And on November 3, 1973, how could the Justices of the South Carolina Supreme Court, along with any of the other thousands of members of the South Carolina Bar Association possibly know that I was “duly qualified” to practice law along side them or in front of them, when I wasn’t at all sure that I was duly qualified (if truth be told – and as I write this – I’m still not so sure)?

Consequently, as we all did then and as brand new attorneys do now, I began practicing law with a sledgehammer.  Just slamming my way forward and throwing everything at the “most immediate problem at hand”.  I stretched out the Socratic Method like a huge rubber band – arguing my “legal points” based on what little tidbits I could glean from law books while blending those tidbits into my clients’ “versions of the truth”, all the while trying to sound and act like I knew what I was talking about…but while facing much more seasoned and polished attorneys who were constantly “schooling me” on the finer (and most often the correct) points of law and facts involved in the case.  And I had my share of those “seasoned attorneys’ tire tracks” running up and down my black pin-striped suit.

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 2 (Is This Really How You’re Supposed To Practice Law?)

To my young colleague: thank you for dropping back in for “Lesson No. 2″….hop in and take a ride with me, and I’ll tell you this brief story, and all you have to do is just listen quietly.

After graduating from law school I knew that I wanted to return to my hometown (Anderson) to begin practicing law because after 7 straight years of living there, Columbia was too hot for me in the summer, too cold in the winter, and already overcrowded with attorneys, and I knew that I could be a great “fit” for the larger, mainline law firms in Anderson.  I was wrong about that.

I first interviewed with the largest law firm in Anderson at the time (all of them were excellent attorneys, and brilliant, who universally enjoyed great area, even statewide, reputations).  All the partners gathered around their conference room table to interview me, and the most senior partner began by asking me two questions: what areas of the law practice were the most interesting to me, and what was my graduating grade point average from law school?  WHAT!!!!  And so with that, after I answered I believed I could be a “pretty good” TRIAL attorney and gave them my GPA (I’ll never reveal it here, so let’s just say it was high enough to let me graduate from law school), the interview was over!  Record time. They thanked me for meeting with them, and they were gracious enough to let one of the partners “show me around” their law library and walk me to my car.

Four months, 2 more “live” interviews, and around 8 “cold calls” to Anderson attorneys later, in December, 1973, I was hired as an associate by a two-man partnership at an annual salary of $9,000.  Both attorneys were excellent (the “senior partner” was the Circuit Solicitor at the time, and the “junior partner” was also a terrific trial attorney, but they had completely different and compelling personalities and work ethic.  And in the time I was with them, they each became my mentors and my tor-mentors.  But to their everlasting credit, they instilled in me the early awakenings of what would become my love for the practice of law…and here’s why:

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 1

My intent is to take my time and really try to put some thought and effort into writing a series intended to focus on an “audience of just one” – on some young attorney out there who has practiced law for less than 5 years and who, even now, is wondering if he or she made the right career decision by choosing law school over, well, any other post-college career path.  And I’m driven to do this because, after now practicing law for almost 44 years, there have been so many times in my professional life where I have wondered if I made the right decision….and because the older one gets the more melancholy one becomes, I realize that my “professional clock” is winding down, and that the only “footprint” I can possibly leave is to share my wisdom (and there is very little wisdom) and my experience (but there is a great deal of experience, both good and bad) with the youngest of my colleagues.

I plan to include some anecdotal stories from my earliest days of practicing law up to the present time – but I promise to try and not bore you too much with these tales (and I certainly don’t intend on making this a “diary”, because then I would bore myself); and I will offer you only the ones which I hope will help you avoid the pitfalls and problems and agonies I experienced going through them (and maybe you would have even shared some of these exact same “experiences” with me).  And I will then give you a number of suggestions and lessons and “maxims” and ideas which I hope will keep you centered and moving forward in this most difficult of professions.

Let’s start.

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Noojin v. Noojin – The 2016 South Carolina Family Law Case Of The Year

If you practice family law in South Carolina, then you may agree that it is a rare occasion when our appellate courts publish an opinion during any given calendar year which changes the trajectory of how we practice family law.  More often than not, a published opinion tends to validate our collective understanding of how we are to micromanage various aspects of the clients’ cases moving forward (such as, the Wannamaker v. Wannamaker, 395 S.C. 592, 719 S.E.2d 261 (Ct.App.2011) case, which recognized the family court judge’s discretion in valuing a spouse’s retirement account based on that party’s actual contributions into the account rather than valuing it based on a “present value” computation of a forensic expert; or perhaps the Roof v. Steele, 413 S.C. 543, 776 S.E.2d 392 (Ct.App.2015) or Woods v. Woods, S.C.Ct.App. Opinion No. 5430, filed July 27, 2016 cases, which (once again) discussed the various factors applicable to an alimony modification case; or perhaps the Buist v. Buist, 410 S.C. 569, 766 S.E.2d 381 (2014) case, which addressed the factors in awarding – or challenging the award of – attorney’s fees).

However, there are also those occasions when our appellate courts publish opinions which were impactful enough to have forced us to rethink, refocus, and reprocess (1) the way in which we advised clients in the preparation of their family court case, (2) the way in which we prepared the evidence and testimony for the trial of those cases, and (3) the way in which we actually conducted ourselves inside the courtroom at motion hearings or during trial.  And the notion that there is, most probably, a trajectory-changing “case of the year”  lead me down a path of reviewing the various family law opinions published by our South Carolina Supreme Court and South Carolina Court of Appeals from 2011 through 2016, and I came up with my own personal “list of favorites” below (you have the absolute right to disagree with my selections…and choose your own).

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A Proposed Revision to Rule 25, SCRFC – Making Pretrial Discovery In The South Carolina Family Courts More “Lean, Mean…And Affordable (To The Clients)”

Do all of you attorneys who practice family law in South Carolina know what the current Rule 25, SCRFC, actually says…or have we all now simply become accustomed to announcing to the presiding family court judge at the initial temporary hearing that “(we attorneys) have agreed to ‘open discovery’, your Honor … we’ve agreed to use the Rules of Civil Procedure”.

The current Rule 25, SCRFC, says this:

“RULE 25
DISCOVERY

Recognizing the unique nature of the court’s jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, formal depositions or discovery shall be conducted only by stipulation of the parties or by court order upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.”

Unfortunately, practicing family law in the 21st century, and especially in the larger judicial circuits in South Carolina, is akin to playing some type of “video combat game”, and the notion that family law attorneys will “voluntarily” exchange, well, anything, much less “information and documents”, is practicing family law without a safety net (can you say “malpractice”?).  Consequently, the use of the pretrial discovery “sword-and-shield” provided by the Rules of Civil Procedure offers that layer of protection to those of you who might be more, well, litigious-minded (i.e., how many hours can you bill for drafting interrogatories or requests for production of documents or taking the deposition of the guardian ad litem….you know, those things which have a “meaningful” impact on your evaluation of your client’s case and your trial strategy?).

Ask yourself this question: in a calendar year of family court cases, in how many of those cases did the time spent in your “pretrial discovery process” generate a final financial result for your client which exceeded the client’s fees in paying for the time spent by your paralegal and/or you in pretrial discovery?  And in how many of those cases did the information produced in your using this same discovery process have a direct result in your client “winning” custody of the children?  If the answer to this question was “every time”, then stop reading this blog post, and have a good life.

In 2005 there was an effort among several family court judges to make significant revisions to Rule 25, SCRFC (which I will set forth below).  Those efforts were met by varying emotions, reactions, and comments from both the family court bench and bar ranging from benign silence, to scorn, to outright derision.  The “framers” of these revisions did NOT take it personally,..however, all subsequent efforts ceased.

And so, here they are once again, over a decade and, perhaps collectively, millions of dollars of your clients’ attorneys’ fees, later….read on at your own peril: Continue reading

(My Former) Pet Peeves Regarding Proposed Family Court Orders – Misguided, Misunderstood And Misconduct

Note: A number of years ago I had written an article which I was fortunate to have published in the SC Lawyer magazine centering on the significance of family court orders.  Of interest (at least to me) is that even now I have continued to “cross paths” with family court orders which might be problematic to the attorneys and their clients; and so I thought that some of you family court attorneys out there might have and take the time to read what I had described as a “cautionary tale”, hoping that you might find something helpful to you.  Good luck out there.  [Disclaimer: this article is longer than a more “typical” blog.]

” Twas brillig, and the slithy toves did gyre and gimble in the wabe; all mimsy were the borogroves, and the mome raths outgrabe.  Beware the Jabberwock, my son! The jaws that bite, the claws that catch! Beware the Jubjub bird, and shun the brumious Bandersnatch!”*

[*“Jabberwocky” (in part) from Through the Looking-Glass and What Alice Found There” (1872 by Lewis Carroll): “When Alice has finished reading the poem she gives her impressions:  ‘It seems very pretty’, she said when she had finished it, ‘but it’s rather hard to understand! (You see she didn’t like to confess, even to herself, that she couldn’t make it out at all.) ‘Somehow it seems to fill my head with ideas – only I don’t exactly know what they are!’ ]            

 Did you read this, and did you understand what it says…and what it means? And are you certain the opposing attorney and his or her client understood it?  Perfect.  You’ve just sent your family court judge your proposed order for the judge to sign.

When you sent the “proposed order” to the judge, what exactly did you want the order to accomplish, and what result did you seek?  Did you want to sound smart?  Did you want the order to sound or be purposely vague? Were you guessing at what the judge had ordered and instructed? Did you try to cleverly add several “findings” or “conclusions” or (please say no) slip in some additional relief for your client that the judge never ordered?

Answer this question for me: in order of priorities from the list below, what do you believe is most important to your family court judge after the conclusion of your case?

  • Making certain the proposed order accurately states the judge’s ruling?
  • Making certain the proposed order is grammatically correct, with the judge’s name spelled correctly?
  • Making certain the proposed order is sent to the judge as soon after the hearing or trial as possible?
  • Making certain that if you cited statutes or appellate court opinions in the proposed order, they were a correct statement of the law applicable to the judge’s ruling?
  • Making certain the proposed order, as to form, complied with the South Carolina Rules of Family Court or the South Carolina Rules of Civil Procedure?
  • All of the above?
  • Any of the above?

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Federal Preemption And The Acronyms For Federal Retirement Plans (a/k/a The “Mysterious Alphabet” Of The Family Court)

If you have the time (or if you are able to take the time) to read through the materials below, then you’ll quickly find that you’ve entered the very murky waters of an area of the practice of family law that often sends chills up and down the spines of family court attorneys – federal preemption and federally-connected retirement or survivor plans [think “QDROs” or “COAPs”].  I’ve simply tried to give you a “taste” of some case law which might cause you to dig a little deeper into the preparation of your clients’ marital settlement agreements or your own trial preparation if your clients’ futures (and certainly your clients’ marital assets) are affected or impacted by these areas.  Good luck out there.

I.  FEDERAL PREEMPTION:

Fisher v. Fisher, 319 S.C. 500, 462 S.E.2d 303 (Ct.App.1995): “Federal preemption did not preclude application of state equitable distribution laws where Congress had not explicitly excluded (military) early separation incentive pay from state apportionment laws.”

  • Social Security benefits

 Simmons v. Simmons, 370 S.C. 109, 634 S.E.2d 1 (Ct.App.2005)“Although we are sympathetic to Wife’s claim, Social Security benefits simply cannot be divided in an equitable distribution award.  Because Congress preempted the Social Security arena, state courts do not have subject-matter jurisdiction to mandate distribution of such benefits whether by agreement or otherwise.”

  • Military Survivor Benefit Plan annuity

 Silva v. Silva, 333 S.C. 387, 509 S.E.2d 483 (Ct.App.1998):  “Major Silva (husband) and Brigitte (first wife) married in 1972 and divorced in 1985.  In a settlement agreement merged into the divorce decree, husband agreed to designate Brigitte as the beneficiary of his military Survivor Benefit Plan.  The decree provided further that the husband would complete all necessary paperwork and provide documentation that he had done so.  Although sometime during their marriage husband had named Brigitte as his spouse beneficiary, he failed to comply with the court’s order and execute the necessary forms to ensure that Brigitte, as a former spouse, would receive the benefits.

 In 1987 husband married Wendy (second wife).  In December 1992 husband died.  Because husband failed to complete the paper work that would allow Brigitte as his former spouse to collect the SBP annuity, Wendy, as husband’s widow, began receiving the annuity pursuant to the default provisions of the SBP.

 In 1994 Brigitte filed suit in circuit court seeking to (1) impose a constructive trust over the SBP payments being received by Wendy, (2) order an accounting of all SBP proceeds, and (3) disgorge all payments already received by Wendy.  At trial, Brigitte’s attorney conceded that husband assumed that Brigitte would receive the benefits because Brigitte was still named as the spouse beneficiary.  The attorney also stated Brigitte was not alleging husband was guilty of fraud, deceit, or malice by his inaction.  The trial court refused the requested relief.

 “The SBP (military Survivor Benefit Plan) was created by Congress in 1972.  The system was designed to provide an annuity payable to a retired service member’s surviving spouse or child upon the service member’s death. … A 1982 amendment expanded SBP coverage, allowing a service member the right to designate a former spouse as the beneficiary. … The following year Congress clarified the 1982 amendment and provided a retired participant the right to name a former spouse as the beneficiary if at the time of retirement the service member had designated the spouse as the beneficiary and the couple subsequently divorced.  To do so, however, the service member was required to notify the appropriate government official in writing within one year     following the date of the decree of divorce, dissolution or annulment.

 …A former spouse is allowed only one year from the date of the court order or filing to do so (write the appropriate government official upon the failure or refusal of the service member to have sent this written request).  Congress has further provided that the SBP annuity ‘is not assignable or subject to execution, levy, attachment, garnishment or other legal process.’

We find the reasoning of the Georgia court persuasive and conclude that the provisions of the SBP make clear Congress’s intention to occupy the field under these particular circumstances.”

  • Employment Retirement Income Security Act (ERISA)

 Walsh v. Woods, 371 S.C. 319, 638 S.E.2d 85 (Ct.App.2006)“Any and all State laws insofar as they relate to employee benefits plans are preempted by ERISA.  This Court has recognized that the preemptive effect of ERISA is a broad one.

 …While ERISA related claims involve subject-matter jurisdiction, 29 U.S.C.§1132(3)(1) vests both state and federal courts with concurrent subject-matter jurisdiction of certain civil actions brought by the participants or beneficiaries against an employee benefit plan.  Nevertheless, under preemption principles, federal ERISA law must control our decision on the issue of Wife II’s claim to the SSB (surviving spouse benefits).

(Factual note:  In the present case, at the time husband retired in 1989, the SSB vested in Wife I because the two were still married.  Although husband had a ninety-day  window prior to his retirement in which he could have, with Wife I’s written consent, removed her as a beneficiary of the SSB, this was not accomplished.  After husband retired, even if Wife I had agreed to waive her SSB, she could not do so under ERISA.  Wife I’s purported waiver in the divorce agreement was ineffective to waive the SSB because ERISA does not allow a beneficiary to waive SSB after a plan participant retires.  …  ERISA provides SSB may not be paid to a spouse who marries a participant after the participant’s retirement.”]

 …It does seem untoward that husband should not be able to have a component of his qualified joint and survivor annuity awarded to Wife II, rather than a woman from whom he has was divorced and did not have a relationship with for years before his death.  However, in keeping with our reading of federal law, there is no other resolution possible.

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In Tribute To My Child

There is a quiet, almost unspoken bond of devotion which a parent has for a child.  No one on earth knows the heart and soul of a child in the way a parent knows.

I adore my child.  And I remain just as adoring a parent as the day my child was born.  If truth be told, I am also in constant wonderment of my child as my child, day-by-day, grows older.  My child’s gentle spirit will remain strong; my child’s willingness to be caring is God-given; and my child’s creative and inquisitive personality is self-acquired.

Yet, as my child grows older, I can still search for and find in that face that same child which I have prayed for every day since my child’s moment of birth.  And I already miss my child…because just as a meandering stream carries a single leaf ever onward and away from its point of beginning, so does each passing day carry my child towards a life joined in spirit with, and yet separate from, mine.  Although I try to remember that we are all children, with some of us simply older than others, I also know that I shall be a parent forever, and my child shall always be my child.

I pray that my child always has a strong sense of home.  My child should always know and feel that the love of this parent is everlasting, timeless…and unconditional.

I write this in tribute to my child.

Panhorst v. Panhorst And The Cheshire Cat

From Wikipedia: “The Cheshire Cat is a fictional cat popularised by Lewis Carroll in Alice’s Adventures in Wonderland and known for its distinctive mischievous grin. While most often celebrated in “Alice”-related contexts, the Cheshire Cat predates the 1865 novel and has transcended the context of literature and become enmeshed in popular culture, appearing in various forms of media, from political cartoons to television, as well as cross-disciplinary studies, from business to science. One of its distinguishing features is that from time to time its body disappears, the last thing visible being its iconic grin.”

Here’s the scene (this is an absolutely true story): I’m holding court in Richland County in my very first week as a family court judge, and on my docket is a contested hearing with the infamous Douglas Kosta Kotti and another family law attorney, and before I start their case I invite them back into my chambers for a quick pretrial conference and to introduce myself to them.  The two attorneys are cordial to each other and are both wary of me (justifiably so), and within a millisecond of being seated, Douglas K. Kotti blurts out, “Judge, I don’t know why we’re here.  This case is governed by Panhorst v. Panhorst, and (the opposing attorney) wants to get into property and debts these folks had years ago and those things are gone…they’re GONE, Judge….well before the wife ever filed her Complaint.  It’s clearly a Panhorst case, and we’re wasting your time with it.”  Wow, I thought … pretty cool start.

The opposing attorney then began by quietly, carefully, artfully, and rather skillfully laying out his position as to why the parties’ marital assets and marital debts were “in play”; and every time this attorney completed a single thought, Douglas Kotti would mutter “it’s a Panhorst case, man”.  Well, after about the third such “exchange” between the attorneys, Doug Kotti was now down to simply saying “Panhorst, but this time I was watching him more closely, and he was turning his head away from the other attorney…and D. Kotti was smiling.  The other attorney could not see this ever-broadening smile, but that attorney was fuming by now…and I have to admit that I egged it on (somewhat) by asking Kotti if he “cared to elaborate” on his position, and HE knew I was into his ploy.  “Judge, one word – Panhorst.”  And with that, the other attorney let out a scream in that office as he pointed his finger at DKK and said almost nose-to-nose: “G…d…it! If you say Panhorst one more time I’m going to knock the ever-living s..t out of you right here, in this office, in front of this judge!!!”

And with that, DK looked that attorney straight in the eye and almost breathlessly whispered, “Panhorst.  And then the strangest thing happened right in front of my eyes: K completely disappeared inside that office except for the last thing visible: the largest smile I have ever seen on a face of man or beast!  A thing to behold.

And Doug Kotti – a/k/a “The Cheshire Cat” – forever became a legend to me…and we’ve been fast friends from that day forward.

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